GAO Publishes Fiscal Year 2021 Bid Protest Statistics

Pillsbury Winthrop Shaw Pittman LLP

[co-author: Ariella Cassell]

Effectiveness rate remains high at 48 percent.

TAKEAWAYS

  • GAO’s effectiveness rate of 48 percent in 2021 dropped slightly from the record high of 51 percent in 2020.
  • GAO’s sustain rate of 15 percent in 2021 is the same as in 2020.
  • The use of ADR dropped in 2021, but the ADR success rate increased to 84 percent.

On November 16, 2021, the Government Accountability Office (GAO) published its Bid Protest Annual Report to Congress for Fiscal Year 2021. The GAO’s report, which is mandated by the Competition in Contracting Act, lists its key statistics for Fiscal Year 2021 bid protest activity. The report also includes a chart providing similar bid protest statistics for Fiscal Years 2017-2021. This five-year snapshot provides some valuable insight into current bid protest trends and developments at GAO.

Most notably, the GAO’s report reveals that the effectiveness rate, which includes protests that resulted in either voluntary agency corrective action or a GAO decision sustaining the protest, decreased to 48 percent from 51 percent the year before, which was the highest rate since GAO began tracking this metric in 2001. The sustain rate of 15 percent for 2021 remained the same as in 2020. The number of cases settled through alternative dispute resolution (ADR) decreased to 76 in 2021 from 124 in 2020, which was the highest number since 2013 (145). The ADR success rate, however, increased to 84 percent in 2021 from 82 percent in 2020.

The total number of protests filed at GAO in 2021 (1,897) was down 12 percent from 2020 (2,137) and continued a downward trend from the high in 2018 (2,642). The report also illustrates that GAO only used hearings in 1 percent of developed protests, which is the same percentage as in 2020. GAO conducted only 13 hearings in 2021, up from the 9 hearings conducted the previous year.

Finally, the report shows that the most prevalent reasons for GAO to sustain a protest in 2021 were: (1) unreasonable technical evaluation; (2) flawed discussions; (3) unreasonable cost or price evaluation; and (4) unequal treatment. Notably, this list does not include two of the most highly successful protest grounds from 2020: flawed solicitation and unreasonable past performance evaluation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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